Undocumented 17-Year-Old Must Delay Abortion, Court Rules

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Demonstrators in Washington on Friday showed support for an undocumented immigrant seeking an abortion in Texas.CreditJ. Scott Applewhite/Associated Press

By Christina Caron

Oct. 21, 2017

An undocumented 17-year-old caught in a legal standoff with the federal government must further delay plans for an abortion after an appeals court ruled on Friday that the Department of Health and Human Services had 11 days to find a sponsor to take custody of the teenager.

The decision by the United States Court of Appeals for the District of Columbia Circuit could put her health at risk, doctors say, especially now that she is about 15 weeks pregnant.

“While first-trimester abortion is over 10 times safer than childbirth, the risks gradually increase in the second trimester to those of childbirth,” Dr. Nancy L. Stanwood, the chief of family planning at the Yale School of Medicine, said in an email. Forcing her to wait, she added, “harms her physical health, period.”

Further complicating matters, the teenager only has about a month to get an abortion in Texas, where she is being held. The state has banned abortion after 20 weeks of pregnancy unless there is a medical emergency.

The teenager, referred to as Jane Doe in court documents, found out she was pregnant last month after she was apprehended while entering the United States without her parents.

She decided to end her pregnancy, but Texas law requires a minor to get parental consent or a judicial waiver to do so. She obtained a waiver, but the government prevented her from going to any abortion-related appointments, the American Civil Liberties Union said in court documents, and forced her to visit a religiously affiliated crisis pregnancy center where she was asked to view a sonogram.

President Trump has worked to restrict abortions since his first days in office by expanding the so-called global gag rule, which withholds American funding from international organizations that discuss or perform abortions; taking aim at Planned Parenthood funding; and appointing several leaders who are anti-abortion, including E. Scott Lloyd, the director of the Office of Refugee Resettlement at the health department, and one of the defendants in the Jane Doe case.

The federal government said that it was not its role to facilitate abortion, and that the teenager still had the option of returning to her home country.

“Ms. Doe has options for leaving federal custody — either by requesting a voluntary departure to her home country (which the federal government is willing to expedite if requested) or by being placed in the custody of a sponsor,” the defendants stated in a memorandum on Tuesday. “Given these options, the government is not causing Ms. Doe to carry a pregnancy to term against her will.”

Tanya S. Chutkan, the United States District Court judge who initiated the temporary restraining order, said she was “astounded” by the government’s position.

“She can leave the country or she cannot get her abortion, those are her options?”

The government next argued for the right to appoint the teenager with a sponsor, which would release her from government custody, and said in court documents that the process of securing a sponsor would not unduly burden the teenager’s right to an abortion.

The health department has until Oct. 31 to find a suitable sponsor; if it does, Jane Doe would be able to have an abortion. If she is not released to a sponsor by then, the government has the option of appealing once more.

The 11-day timeline to find a sponsor “seems far-fetched,” said Brigitte Amiri, one of the A.C.L.U. lawyers representing the teenager.

Sponsors are typically family members, according to the health department’s website, who help care for a child who has entered the United States illegally without their parents — often because the child is fleeing an abusive or violent situation.

The vetting process, which includes a background check, can take months, Ms. Amiri said, and earlier attempts to find a sponsor for Jane Doe were unsuccessful.

“They kicked the can down the road, and in this case they kicked the woman down the road,” Dr. Stanwood said. “They are just delaying her care to no end but their own ideology.”

A spokesman for the Administration of Children and Families, which is part of the health department, said in a statement that the care of minors like Jane Doe was important.

“For however much time we are given, the Office of Refugee Resettlement and H.H.S. will protect the well-being of this minor and all children and their babies in our facilities, and we will defend human dignity for all in our care,” the statement said.

The teenager will be 16 weeks and five days pregnant at the end of October, according to the nonprofit legal organization Jane’s Due Process, which has been working with the A.C.L.U. If the appeals process continues into November, the teenager will reach the 20-week mark, which would prevent her from having an elective abortion in Texas.

The sooner the teenager can have the abortion, “the safer it will be for her,” said Dr. Hal C. Lawrence, the executive vice president of the American Congress of Obstetricians and Gynecologists, who practiced obstetrics for nearly three decades.

As the uterus gets bigger, he added, the walls of the uterus get thinner, which increases the possibility of perforation and puts women at risk of additional blood loss during an abortion.

Health risks aside, delaying an abortion can cause emotional trauma.

“Women don’t just wake up one morning and decide they’re going to have an abortion,” Dr. Lawrence said. “And so to make her continue to struggle and be denied access to something which is legal — all that does is increase the psychological stress for her, and that’s not healthy.”